WHAT HAPPENS IF THE WINNING PRESIDENTIAL CANDIDATE DIES AFTER THE ELECTION?
The 20th Amendment says the term of the current president and vice president ends at noon on Jan. 20. There is no provision to extend it. The amendment also says if the president-elect dies, the vice president-elect shall be sworn in as president at the start of the new term.
However, the winning candidate doesn’t become president-elect until a joint session of Congress counts the votes from the Electoral College and declares a winner, Pildes said.
By law, Congress is scheduled to formally receive the votes from the Electoral College on Jan. 6. The new Congress, which will be elected in November and sworn into office on Jan. 3, will preside.
WHAT HAPPENS IF THE WINNING CANDIDATE DIES BEFORE CONGRESS DECLARES A WINNER?
“That’s the worst, most confusing time,” said John Fortier, director of governmental studies at the Bipartisan Policy Center. “They are going to have to figure out what to do with (Electoral College) votes cast for a candidate who has died.”
If the winning candidate dies before the Electoral College meets, the electors could coalesce around a replacement candidate recommended by the party, perhaps the vice presidential candidate.
“For the most part, these people are picked because they are loyal party people,” Fortier said. “You could have a few stray here or there, but they are not rebels.”
A party’s electors would have an incentive to coalesce around one candidate, he said, because they wouldn’t want to risk throwing the election to the other party. But there is no guarantee they would all agree on a replacement candidate.
Some states have laws that require electors to vote for the presidential candidate who won the statewide vote; other states could quickly pass laws governing the electors in the event that a candidate dies.
“The party can say what the party wants, but the states would decide what to do with those electors,” Hasen said.
The Supreme Court ruled unanimously in July that states may require electors to support the candidate picked by voters in the election. However, the court left open what would happen if the candidate dies.
“Nothing in this opinion should be taken to permit the states to bind electors to a deceased candidate,” Justice Elena Kagan wrote in a footnote to her majority opinion.
If this happens, expect litigation.
WHAT IS THE ROLE OF CONGRESS?
The 12th Amendment to the Constitution gives Congress the final say on who is elected president and vice president. Congress decides whether to accept or reject slates of electors from the Electoral College and to determine whether a candidate has won the required 270 electoral votes to become president.
As a check on this power, both the House and Senate must agree to reject a slate of electors. If the two chambers don’t agree, the electors get counted under federal law, said Michael Morley, an assistant law professor at Florida State University.
If no candidate reaches 270 electoral votes, the House chooses the president and the Senate chooses the vice president, in a process spelled out in the Constitution.
In the House, each state delegation gets one vote for president, and they must choose among the three candidates who received the most votes in the Electoral College. Currently, Republicans have a majority in 26 state delegations, but the numbers could change after the November elections and a new Congress takes office.
The Senate would choose the vice president by a simple majority vote.
Election experts said they wouldn’t expect the courts to play a role at this point because the Constitution clearly grants Congress the authority to resolve a disputed election for president.
The Supreme Court did effectively decide the 2000 presidential election in favor of Republican George W. Bush by ending the recount in Florida. But the court’s ruling came before the Electoral College votes were presented to Congress.
“It is really in Congress’ hands after the electors have voted,” Fortier said.
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